The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-09-28
In the Matter of Compelling
a Witness to Testify.
LELAND STANFORD's CASE
An Able Review of the Decision
Recently Rendered Against the
Pacific Railway Commissioners.


Judges Sawyer and Sabin, has filed a
dissenting opinion from those fled by
the other jurists in the matter of the
petition of the Pacific Railway Com
mission to compel Leland Stanford to
explain certain vouchers OF the Central
Pacific Railway Company. The unex-
planned vouchers, it was commended.
would tend to disclose what portion of
the moneys of the railroad company
had been paid out to influence legisla-
ton. When the opinions OF Justice
Field and Judges Sawyer and Sabin
were filed, declaring that the Commits
sion had no authority to compelStan! ord
to explain vouchers, the question and
statement was made and so published
that Judge Hoffman acquiesced in the
decision, but this was refuted to-day
by his filing his dissenting OPP MON.
In his opinion, Judge Hoffman says:
II am unable to concur in the
decision of the court refusing to grant
the order applied for by the commits
sioners. The application was made in
precise conformity to the third section
of the act of March 8, 1887. That sec
ton, after comforting power on the
commissioners to require the attend
GuC0 VI WllucSSCS dnu IuO Vi
books, provides that Ito that end they
power given to the courts in cases of
to appear and testify, or produce
books before 1.-THE commissioners,
to issue an order requiring him to do
so, and any refusal to obey such order
may be punished by such court as for
contempt Similar and ostidentical
provisions are contained in the act to
regulate commerce, commonly known
as the interstate commerce act. If
the grounds on which the decision of
the court in the present case are in
great part based, be correct, its aid
must be refused not only to
these two commissioners, but salso
to all commissions OF inquiry
created by Congress to obtain informa
ton. However necessary to en-
lighUened legislation it is not suggested
that Congress could constitutionally
confer upon any such commission
judicial power of adjudging recusant
witness guilty Of and Furnishing him for
contempt. After dwelling on this
point, Judge Hoffman said: Il
think it clear that the right 10 re-
quire information in aid of legis-
lation is an appr )pliAte and necessary
means of enabling Congress to exercise
its great and principal, if not sole, func-
ton. That it is, therefore, a power
conferred upon it by the Constitution
by necessary implication, and that as it
can only be effectually exerted through
and by the aid of the courts, it is the
duty and right Of the courts to furnish
that aid when required by law upon no
tice to witness, and after a full and
careful consideration whether the pro-
posed inquiry invades any Constitu-
tional right, immunity or privilege which
witness may claim" Judge Hoffman
then declares: Every constitutional
right OF the citizen would thus be fully
protected, and he would receive that
protection; whereas in all cases he
must ultimately look for it in the courts
of the country. If l am right in this
construction of the statute. the objec-
ton fails" Judge Hoffman then turns
to the second ground upon which the
that no jurisdiction has been given
TO the court under the Constitu-
ton, nor can it be conferrf
by Congress to entertain an applica.
ton of this nature, because there is no
"case" or controversy" before it, such
as is contemplated in the provisions
which define the extent of the judicial
power of the United States. The jurist
claims that the questions raised by the
inquiry are in the highest sense judicial
in their nature. He says: IF the
judicial power of the United States ex-
tends only to cases before the courts,
between parties plaintiff and defendant,
and if no power exists TO issue a COM
pulsory process in aid of the inquiry
directed to be made by the statute of
the United States, have been unable
to see how that power can be invoked
in aid of judicial Investigations in a
foreign country. Certainly, courts can
possess no inherent power, except as
conferred directly or indirectly by the
Constitution, and it is equally certain
they can derive none from the comfy
of nations.
The laws of Congress also provide
that compulsory process may issue to
obtain the testimony of witne g
IN perDetudm rel nle1nOriGm. The
exercise of this power is not limited to
cases actually pending in court between
parties, plaintiff and defendant. 1t ex-
tends to cases where litigation is ex-
pected or merely apprehended. In all.
or many cases, extensive powers OF in
vestigation to inquiry have been con-
fded to the grand njuries; in aid of
these inquiries, compulsory process is
freely awarded and enforced by the
courts. He, therefore, contends that
the second objection fails.
He closes as follows: "The doctrine
enunciated, in effect, denies to Con-
gress the right to invoke the aid of the
courts to secure by compulsory pro-
cess the attendance of any witness be-
fore any commission of inquiry, and
to the court the right of atfording aid,
if invoked. The Immediate effect of
this decision, if followed, is to
cripple, if not paralyze, the commits
sion in the discharge OF large part of
the duties imposed upon them by law.
Much of the information sought for
can only be obtained from the officers
and employees of the railroads. So long
as these persons supposed they could
be compelled to attend and give EVIL
dence, they freely responded to the
summons of the commissioners; but
now that they are advised that no
power exists to compel them to
do so, they will naturally de-
cline to assume the odious
attitude of voluntary informers
against their employers, and will refuse
to produce any papers or disclose any
fact which might injuriously aztec.
them. If the witness had been ordered
80 H.